THE CASE OF NBA PROPERTIES INC. V. KRIS JOHN GAUNT

The case of NBA Properties Inc. v. Kris John Gaunt

The case of NBA Properties Inc. v. Kris John Gaunt

a. Describe the facts of the case

In the case of NBA Properties Inc v Kris John Gaunt, the respective logos were found to be 'substantially identical' Once

a slogan becomes incontestable, a defendant cannot challenge the validity of the slogan on the ground it is descriptive without secondary meaning. (Section 60 Trade Mark Law)

b. Describe the issues or questions before the Court

In NBA Properties, Inc v Kris John Gaunt (1999) 44 IPR 225, the hearing officer had recognised that character merchandising was a common and prominent feature of the commercial world. Although the opponent's marks had not been used in respect of food items, account should be taken of the hearing officer's words in that case that, "in terms of today's commercial reality, Licensing practices and public's awareness, she said, were relevant factors for consideration in determining the likelihood of deception or confusion of trade marks.

c. Describe the court's decision and rationale

Kris John Gaunt applied to register the logo "Raptor Pizza" for pizza products and NBA Properties Inc., opposed on grounds of Gaunt's logo being "substantially identical" to its famous TORONTO RAPTORS logo. Finding for NBA, the Trade Marks Office HELD: The two logos were "substantially identical".(Section 60 Trade Mark Law)

The TORONTO RAPTORS logo enjoyed a significant reputation due to the fan following US Basketball had in Australia. the Court focused its analysis on whether illustrations used in advertisements are sufficiently artistic to warrant copyright protection, and noted the difficulty in drawing the line between commercial and fine art. The likelihood of deception or confusion arose because NBA engaged in several merchandising and sponsorship activities, and it was conceivable that NBA would have some ...